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April 20, 2017

Rights or just suggestions?

******If you can't see tables and graphs, click the title to go directly to the website*******

In December 2015 I was honored to receive the Dr. Burnley Allan "Rocky" Jones award from the Human Rights Commission. I had been an unsuccessful complainant in 2004, but only had vague doubts about the correctness of that decision.

Now I have been through the complaint process a second time with five other wheelchair users, ending up with a judicial appeal. We won that appeal, but it has led me to question the effectiveness of the Human Rights Commission, and the several methods of resolving disputes it employs.

I''m an outsider, but I have an interest. The HRC needs fixing, not defending. Here are some observations and questions.

Workflow

Faithful reader Elizabeth Portman suggested I look at the Human Rights Commission annual reports to get an idea of the workflow. Good idea! So I checked and found only one annual report posted to the HRC website. I wrote to ask for more (they're required by the Act) but did not get a reply. Here are the numbers from 2014-2015:

Inquiries

2461

Complaints

117

Percent

4.8%

So 2,461 Nova Scotians phoned, emailed, or sent a pigeon to complain that their human rights were violated. When asked for details (on the road to becoming a complaint rather than an inquiry), more than 95% were determined not to fall under the compass of the Human Rights Act. Not belonging to a protected class (sorry, Hell's Angels), exception (insurance companies are allow to have rates based on age) - probably a ton of reasons. It would be obvious to have some record of the disposition of inquiries, but this is not a part of the HRC's transparency.

117 complaints were added to the workload in 2014.

Looking further, I found a few similar numbers in other jurisdictions - not a lot.

Ontario had a similar rate of converting Inquiries to Complaints - 5%. The Feds are in a different league. I tried to make some sense of the disposition of cases. but the lack of uniform reporting makes it difficult. For example, the Feds have a category "decided not to deal with 226 complaints" that is unreasonably arbitrary. The take-away seems to be that only some inquiries become complaints and most are subsequently settled. A very few are referred to tribunals.

There are 15 years of Accountability Reports to report outcomes against the Commission’s Statement of Mandate for the fiscal year just ended, mostly devoid of numbers (except for budgets) and full of platitudinous prose like "The Commission is at the cutting edge of best practices for human rights."

Complaints

In Nova Scotia, the process of filing a complaint requires the cooperation and assistance of a Human Rights Officer:

If your complaint falls under the protection of the Nova Scotia Human Rights Act, the human rights officer who drafts your complaint will begin by defining the problem with you in writing. This is called filing a complaint. Please note that the complaint form must be filled out together - by phone or in person - by Commission staff. Complaint forms prepared by someone other than Commission staff will not be accepted.

The form is nowhere to be found. This hand holding seems unnecessary and condescending and clearly it adds time and inconvenience to the complaint process. A good form design would guide complainants through a complex process, maybe even leading to self-withdrawal. After all, 17 year-olds apply to university, we fill out tax forms, we fill out Russian visa applications. We ain't stupid.

Unlike virtually every other encounter with government, there is no fee. A small and liberally waived fee ($5?) like a FOIPOP request could indicate seriousness of purpose.

Human Rights Officers are given the role of gatekeepers rather than advocates. Are they rewarded for crafting compelling complaints, or creative dismissals? The idea of a single reviewer inevitably creates ambiguity. A Human Rights Officer could and should have the role of advocate, annotating and commenting on complaints. To have confidence in the process, the evaluation should always be done by a committee.

Let's see, 2400 inquiries is 12 per workday. Say 12 professional staff means one new inquiry a day each. They could meet weekly as a group and consider 60 cases. This kind of decision-making inspires a certain confidence in the process that is currently lacking.

The right form, along with a little artificial intelligence, would be very helpful in evaluating complaints. Such an adaptive computerized instrument, where a selection of items is presented on the computer, and based on the answers on those items, the computer selects following items is well-known science. The Commission's Preferred Legal Positions are almost a roadmap for this kind of algorithm.

It could hardly do worse than the current system, which Justice Edwards called "neither justifiable, transparent or (in some respects) intelligible". Why the Commission would defend such an opaque and flawed process is a mystery. They should look for a 2017 solution.....

Examples

On the Commission's website are 14 summaries of illustrative settlements. They each fall into an area:

Accommodation (1)

Employment (10)

Access to Services (3)

and a characteristic

Disability (5)

Aboriginal origin (1)

Gender, sexual orientation (4)

Family status (1)

Retaliation/ harassment (2)

Race (1)

These are all two-party disputes and share certain outcomes

Apology (6)

Compensation (7)

Public Education (11)

It's noteworthy that settlements are specifically not precedent setting, thus none apply beyond the immediate dispute. There don't appear to be penalties levied, as permitted under the Act, nor are there any examples of remedies that address systemic problems, like the underrepresentation of minorities in government employ.

Notice that although the HRC isn't a party to the dispute, it often manages to get education included in the settlement.

Here is how an example settlement agreement looks. I've rewritten it after a well-known case:

Nova Scotia Human Rights Commission

Settlement Agreement

___________________________________________

About Settlement Agreements

Many human rights complaints are settled (closed through an agreement between the parties). When cases settle, there is no decision on whether discrimination happened because only a Board of Inquiry (i.e., public hearing) can do that. Cases settle for many reasons (speed, control over the process, confidentiality, etc.), and each agreement is unique. Settlements do not create “precedent”, meaning they do not influence future Board of Inquiry decisions.

This is an example of a matter that was settled by the parties. The agreement is confidential and therefore any identifying information has been removed or altered.

____________________________________________

Area: Access to Services or Facilities

Characteristic: Race

In 1946 the Complainant bought a ticket to a movie, asking for a seat on the main floor. As she took a seat on the main floor, she was told by the manager that she did not have the ticket for that seat. She returned to the ticket booth, where she was informed that it was against their policy to give a main floor seat ticket to a black person. She returned to the main floor and refused to sit in the balcony designated exclusively for blacks in the segregated theatre. She was forcibly removed from the theatre and arrested, causing injury to her hip. Complainant was charged with tax evasion over failing to pay the one-cent difference in tax between the cheaper balcony and the slightly more expensive main floor tickets. She was fined C$20 (equivalent to $270 in 2016)and court costs of $6. She paid the fine and returned to Halifax.

She contacted the Nova Scotia Human Rights Commission. With the support of the Commission, the parties reached an agreement to resolve the concerns. This agreement includes the following terms:

Individual Terms

Letter of regret

Common understanding of ticket sales process for future reference

Charges of tax evasion suspended

Public Interest Terms

Policy changes to reflect the Human Rights Act

In an instant, Viola Desmond is transformed from the icon of Nova Scotia civil rights to a footnote in a bureaucratic transaction. Her personal courage, her example is trivialized. Her tormentor suffers no penalty. We are all diminished by a process without real consequence for offenders.

Boards of Inquiry

"If the parties have been unable to resolve the complaint through a resolution conference, a recommendation may be made by the human rights officer to the Commissioners to refer the matter to a Board of Inquiry. "Last time I wrote about the 128 Boards of Inquiry held since 1979. The reports are lengthy (often fifty pages), the hearings are expensive, usually accompanied by lawyers. 2015 saw 15 and 2016 saw 10 - the numbers are declining. Whether this means more successful settlements cannot be known without the missing annual reports.

A 2013 document, Handout on Damages, lists seven employment-related cases where damages were awarded in the amounts of $5000 and below, and six cases from $5000 to $15000. For some respondents, these may have been significant penalties, for others, not so much.

The lengthy decisions read like Supreme Court of Canada material, run like trials, full of citations and legalisms. They cry out for a plain-language summary. I don't presume to know why courts are the model here, but in the interest of lowering expense and increasing speed, something simpler seems called for. Some smart lawyer ought to be able to draw up a set of rules and procedures that provide access to justice without all the trappings of a trial.

Education

This seems to be where it's at for the HRC. Most of the example settlements contain a requirement for education. In addition to touting success in restorative justice "we will continue to work on initiatives such as the Community Conversations and Consumer Equity programs. Both initiatives represent responses to priority issues of systemic discrimination that warranted deliberate engagement."

There is no indication that the HRC ever takes the initiative to rectify cases of discrimination. It should be investigating circumstances like this building leased by government where some people with disabilities are effectively excluded and prevented from employment.

Conclusion

Which finally brings me to my point. Of all the things government does, perhaps the most meaningful, almost sacred duty is to protect individual rights. To make sure you're treated the same as me, to make sure no one messes with what you are promised in the Charter.

To paraphrase Dr. King, we must honor seekers of human rights "for their sublime courage, their willingness to suffer, and their amazing discipline in the midst of the most inhuman provocation; their majestic sense of purpose.....and the agonizing loneliness that characterizes the life of the pioneer."

As practiced by the Human Rights Commission, Restorative Justice doesn't honor seekers of justice, it hides them. It also shields the perpetrators of Human Rights offenses from public view. Since there is no precedent set, the HRC permits, no encourages further offenses. By not penalizing offenders, it turns an offense to society into a mere inconvenience.

One in One Thousand - The forgotten legacy of James McGregor Stewart

James McGregor Stewart, 1889-1955, son of a Pictou lawyer, grandson of a Cape Breton minister, was a principal of Stewart, McKelvey, the downtown Halifax law firm. In his time he was Nova Scotia’s premier corporate lawyer, and he wrote the rules for many of our most successful and long-lived companies. He was president of the Canadian Bar between the wars. He is one of fewer than 500 Canadians to be awarded the Commander of the British Empire for services to the Empire in WW II. His obituary was in the New York Times.
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